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]]>constitutionaldefenseA Reality Check on Bruning, Kleinehttps://constitutionaldefense.wordpress.com/2009/12/18/a-reality-check-on-bruning-kleine/
Fri, 18 Dec 2009 13:42:43 +0000http://constitutionaldefense.org/?p=315Here is a reality check about Omaha World-Herald and Lincoln Journal Star coverage of legal questions about the constitutionality of LB 285.
First off, Stu Dornan got it right: “If the constitution doesn’t protect all of us, it protects none of us.”

Now, about those who got it wrong:Nebraska Attorney General Jon Bruning said: “This is a group of people who are obviously very unhappy they are caught, and they’re going to challenge everything.”
The FACT is: This is a group of people who have paid dearly for their crimes, succeeded in therapy, and have become productive members of our community. They have families and jobs and they pose little or no threat. They are unhappy that LB 285 strips them of their constitutional rights and will destroy their lives.

Bruning and Kleine both implied/stated that this was about public safety.
The FACT is: Many of the actions that become felonious under this law are already a felony. Yes, it’s already a felony to prowl the internet for child victims. This law makes normal legitimate healthy activities felonious on top of that. It takes an enormous pool of people, who have already been clinically checked, and deemed “non dangerous”, and pools them in with a group who have already been deemed “dangerous”. The law then presents this very large pool to the public and basically makes you decide if they are dangerous or not. Many of these people have no victims, but their life is over once they are placed on the public registry. Every study done on this law states that this will make it more confusing to the public, and make registrants less likely to be able to complete therapy.

Douglas County Attorney Don Kleine: “These laws have a very important purpose to empower the public to protect their neighbor, their children and their schools.”
The FACT is: Experts agree, and experience elsewhere has shown, that these laws increase danger to the public. Is the public better served with a low risk registrant working full time living with his family or unemployed, homeless, and hopeless?

Bruning said if shared computers are an issue, adding a second one to the home that’s off-limits to the sex offender is one solution.
“It’s not unrealistic for households to have more than one computer,” he said.
The FACT is: LB285 forces the registrant to sign a consent form, permitting law enforcement to search all computers or electronic communication devices possessed by the person, and allowing law enforcement to install hardware or software to monitor the person’s Internet usage on all the computers or electronic communication devices possessed by the person. This shows Bruning doesn’t even understand this law because there’s no way by law a computer in the home could not be considered possessed by a registrant. All family members will be monitored.

Bruning stated this new law made things “simpler”.
The FACT is: The new law strips all due process rights, the rights to appeal, the rights to present evidence on your own behalf, and numerous other rights. It stops using “risk” to place a registrant, and just lumps anyone convicted of a crime, loosely related to sex, into one huge pool.

Bruning stated that under the old system, registrants were often appealing their level.
The FACT is: Under the old system, only extenuating and negative aspects of the case were looked at. Therapy, rehabilitation, and mitigating circumstances were intentionally ignored. Under the old system, even a victim impact statement was ignored. If a registrant wanted to present any of these items, the only possibility was to file an appeal, so that the “good” items could be considered in determining the risk level. The frequency of appeals was simply due to a flaw in the scoring, because it only looked at negatives. As offenders would complete therapy and rehabilitation, their only choice was to file an appeal again, to get this new information taken into their “risk” level.

Bruning stated he “was confident” that this would withstand a constitutional challenge, and that similar laws like this were already challenged and stood.
The FACT is: This law is so incredibly unconstitutional that it is shocking. Read the complaint — the law violates nearly every aspect of the Bill of Rights. Bruning’s statement seriously brings into question his understanding of the U.S. Constitution. More than that, this law is unique, in that it restricts registrants from communication with their spouse and employer. No other law has EVER been written that was this overly broad. He may be referring to Smith v Doe 2001 in the U.S. Supreme Court, but that decision does more to prove this is unconstitutional, than it does to support it.

Kleine argued that a person’s computer at work is already monitored by the person’s employer. “This may create a hardship for some offenders, but that’s not our concern. Our concern is to empower the public with information,” said Kleine.
The FACT is: Employers may be allowed to monitor an employee’s computer, but the State Patrol is not allowed to monitor their computer. The new law forces an employer to allow the State Patrol to monitor everything the employee does with no legal protection of their data. Additionally this law makes it a felony for employees to use social networking, chatting, or text messages to communicate. In the global economy, this is the method of choice for communication in the work force. No employer would consent to this and therefore would not be able to hire a registrant. So Kleine has no concern about making low risk registrants unemployed and hopeless. The law will contribute to the nation’s already desperate unemployment situation.

Bruning stated that this will STOP predators from using text messaging to look for victims.
The FACT is: That is ALREADY illegal. Before this law, that is a felony. This new law makes it a felony for registrants to use text messaging to communicate with their spouse or employer. This law makes it a felony for registrants to communicate with their children’s teachers in school. This law makes it a felony to use any ‘internet enabled device’ that cannot be monitored, which excludes DOZENS of devices, such as game counsels. It becomes a felony for a registrants’ children to even have one of these devices.

Neither Bruning nor Kleine addressed the fact that by lumping all registrants on the public web site, it will be impossible for communities to focus on those who pose a true risk.

Nor did they address the roughly $3 million that it will cost Nebraska taxpayers to implement the law. All for the sake of a couple hundred thousand dollars of federal funding that would be denied as a penalty for keeping Nebraska’s current common-sense system in place.

When the State of Nebraska wants to evaluate a sex offender’s risk of reoffending, it calls upon Omaha psychologist Stephen Skulsky, PhD. What does Skulsky have to say about the new law?
“LB 285 represents a clear and present threat to public safety,” Skulsky said.

They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.
Ben Franklin

The author is an Omaha clinical psychologist and nationally recognized expert on sex offenders. The State of Nebraska and criminal justice system officials routinely call on him to evaluate sex offenders.

The State of Nebraska would be making a costly and dangerous mistake if it implements the sex offender management and tracking protocol outlined in LB 285.

A recently filed federal lawsuit appropriately calls into question the constitutionality of LB 285. I will leave it to the courts to decide that question.

My concern is the safety of our communities. Safety is best served by the current system in Nebraska, under which scientific and law enforcement expertise determines a registrant’s risk of reoffending.

Tossing that system out and replacing it with the “one-size-fits-all” approach of LB 285 means that truly dangerous sex offenders like Phillip Garrido (kidnapper of Jaycee Lee Dugard) will be able to “hide in plain sight” on a public web registry that lists all sex offenders regardless of their level of risk. California has some of the most stringent sex offender laws in the nation, and all sources agree that Garrido escaped law enforcement attention because the system was distracted and overly burdened by tracking registrants who posed little or no risk.

I have evaluated hundreds of sex offenders. I know that there are low-risk registrants capable of succeeding in therapy.

LB 285 will have the effect of isolating, degrading and putting in danger these registrants who pose little risk, as well as inflicting harm upon their families. Low-risk registrants should be required to receive therapy and they should be integrated into society. This is the most effective means of preventing recidivism.

LB 285 could actually have the effect of making it more likely that a low-risk registrant would reoffend. Why? Because the law’s shaming and degrading treatment of low-risk registrants could cost them their jobs. It further could drive them away from seeking therapy and discourage them from compliance with registration laws.

By using a misguided “one-size-fits-all” approach and ignoring expert and law enforcement judgment as to the risk posed by a particular sex offender, LB 285 represents a clear and present threat to public safety. It also is a threat to the families of thousands of registrants who long ago completed their sentences, succeeded in therapy and have become productive, respected, taxpaying members of our communities.

]]>stfactsIowa’s ‘tough’ law puts children at high risk!!!https://constitutionaldefense.wordpress.com/2009/12/17/iowas-tough-law-puts-children-at-high-risk/
Thu, 17 Dec 2009 19:29:18 +0000http://constitutionaldefense.org/?p=293Wilber said that since the residency law took effect in September 2005, hundreds of Iowa sex offenders have dropped off the registry.

referring to public perception

“I know a lot of sex offenders over there who have gone underground, and they have no idea where they’re at, what they’re doing. It make them feel safe, and they’re not safe. As a matter of fact, I’d say they’re worse. They’re probably worse off than Nebraska,” he said.

]]>billorightsJohn Doe and Jane Doe 1 through 20 et al v. State of Nebraska et alhttps://constitutionaldefense.wordpress.com/2009/12/17/john-doe-and-jane-doe-1-through-20-et-al-v-state-of-nebraska-et-al/
Thu, 17 Dec 2009 17:41:47 +0000http://constitutionaldefense.org/?p=224On Wednesday, Dec. 16 a complaint was filed in federal court to block the implementation of LB 285 and related legislation. The complaint says that the law is unconstitutional and asks for a preliminary injunction to halt implementation of the law until many questions about its constitutionality are settled by the courts.

They have requested:

A declaration that LB 97 and LB 285 violate, both facially and as applied, the ex post facto clause of the United States Constitution;

A declaration that LB 97 and LB 285 violate, both facially and as applied, the ex post facto clause of the Nebraska Constitution;

A declaration that LB 97 and LB 285 violate, both facially and as applied, the double jeopardy clause of the United States Constitution;

A declaration that LB 97 and LB 285 violate, both facially and as applied, the double jeopardy clause of the Nebraska Constitution;

A declaration that LB 97 and LB 285 violate, both facially and as applied, the cruel and unusual punishment clause of the United States Constitution;

A declaration that LB 97 and LB 285 violate, both facially and as applied, the cruel and unusual punishment clause of the Nebraska Constitution;

A declaration that LB 97, as amended by LB 285, violates, both facially and as applied, the search and seizure clause of the United States Constitution;

A declaration that LB 97, as amended by LB 285, violates, both facially and as applied, the search and seizure clause of the Nebraska Constitution;

A declaration that LB 97 and 285 violate, both facially and as applied, the due process clause of the United States Constitution;

A declaration that LB 97 and 285 violate, both facially and as applied, the due process clause of the Nebraska Constitution;

A declaration that LB 97 and 285 violate, both facially and as applied, the equal protection clause of the United States Constitution;

A declaration that LB 97 and 285 violate, both facially and as applied, the equal protection clause of the Nebraska Constitution;

A declaration that LB 97 and 285 violate, both facially and as applied, the special legislation clause of the Nebraska Constitution;

A declaration that LB 97 and 285 violate, both facially and as applied, the freedom of speech guaranteed by the United States Constitution;

A declaration that LB 97 and 285 violate, both facially and as applied, the freedom of speech guaranteed by the Nebraska Constitution;

A declaration that LB 97 and 285 violate, both facially and as applied, the contracts clause of the United States Constitution;

A declaration that LB 97 and 285 violate, both facially and as applied, the contracts clause of the Nebraska Constitution;

A declaration that LB 97 and 285 violate, both facially and as applied, the separation of powers doctrine of the Nebraska Constitution;

A preliminary injunction prohibiting each Defendant from enforcing LB 97 and LB 285 during the pendency of this matter;

A permanent injunction prohibiting each Defendant from enforcing LB 97 and LB 285;

]]>constitutionaldefenseWhen is ‘tough on crime’ too much?https://constitutionaldefense.wordpress.com/2009/12/17/when-is-tough-on-crime-too-much/
Thu, 17 Dec 2009 16:58:23 +0000http://constitutionaldefense.org/?p=247Most supporters say, that there is no such thing as ‘too tough’ on registered ‘sex offenders’. But they are missing the point. They want to be harsh on pedophiles. So do we. The public just doesn’t realize that the registry encompasses many crimes, not just child rape. Yes, let’s punish pedophiles, better yet, let’s lock them up, and throw away the key. But stop there. Don’t punish EVERYONE for the crimes of a few.

Politicians have lumped so many crimes into the registry, that you don’t even have to have a victim to be a registrant. Because of this, now the majority of registrants are not even dangerous. And laws like this do not even consider therapy or rehabilitation.

The worst part of laws such as LB-285, is that they are so degrading and punishing, that they go beyond the registrant, to strip rights from the spouse and children as well. They punish the spouse and children just as much, if not more, than the registrant themselves. That’s when you have gone too far. Laws that strip rights from people related to the registrant, simply because they are related to the registrant, go far beyond ‘justice’. Politicians that support stripping rights of family members, simply because they are family members should be immediately removed from office for malfeasance.

Supporters often prefer to castrate everyone charged with ‘sexual assault on a minor’. What about the case of a 17 year old having consensual sex with a 15 year old. That 17 year old is charged with ‘sexual assault on a minor’, so we castrate all 17 year olds that have sex? What if that 17 year old was a girl, and the 15 year old was a boy? Now what do you do? Well, there are cases in Nebraska of EXACTLY this situation, 17 year old girls having sex with 15 year old boys. And the girl is charged with ‘sexual assault on a minor’.

To really put this in perspective, think of this analogy:

Speeding kills people every year. When a person dies in a speeding accident that is a terrible, preventable tragedy. We’ve already given legislature incredible power to get ‘tough on crime’. What happens when they pass a law that goes back 15 years, and re-punishes ALL speeders, regardless if they had an accident or not.

Now let’s take LB-285, which lumps ALL violations together. ANYONE convicted of a traffic violation for the last 15 years will lose their license, most for life. Then put in a 500 foot ‘exclusion’ zone around all cars. If they touch a car, or watch a car commercial, let’s charge them with a felony. Ever get a traffic ticket? Well, you could have killed someone, so this is not too much, is it?

But LB-285 doesn’t even just stop there. To follow this analogy, if the convicted speeder ever accesses a road, we’ll charge them with another felony, because a road COULD be used to kill someone with a car. If their wife or children use a car, or a road, in the registrant’s presence, the registrant can get hit with another felony. This is exactly what legislature is doing with this law.

This is the problem with LB-285. This traffic analogy may sound far fetched, but it’s EXACTLY what LB-285 is doing. It’s not just punishing child rapists. It’s lumping dozens of crimes together under one umbrella ‘sex offender’, and then punishes everyone equally, as if they were the ‘worst of the worst’. And under LB-285, if my wife sends me a text message to get a loaf of bread from the store, I get hit with a felony for using instant messaging.

Is that REALLY the kind of power you want to give legislature? If so, please shred your constitution now, and never look back.

Make Nebraska a more dangerous place for children. It forces law enforcement to keep track of all registrants no matter how likely they are to reoffend. It will be easier for truly dangerous registrants to evade an already overburdened law enforcement and criminal justice system.

Permit truly dangerous registrants to “hide in plain sight” by being lumped in with low- to no-risk registrants, some of whom didn’t even have victims.

Position Nebraska in opposition to such widely known children’s advocates as John Walsh and Patty Wetterling, both of whom have publicly denounced the very type of legislation that was enacted under LB 285. Why have they taken that stand? Because both recognize that the law makes communities less safe for children.

Do irreparable harm to registrants (and their families) who long ago completed their sentences, succeeded in therapy and became respected, productive, tax-paying citizens.

]]>constitutionaldefenseLB 285 Will Make Nebraska More Dangeroushttps://constitutionaldefense.wordpress.com/2009/12/17/lb-285-will-make-nebraska-more-dangerous/
Thu, 17 Dec 2009 16:43:21 +0000http://constitutionaldefense.org/?p=239Phillip Garrido, who kidnapped Jayce Dugard and assaulted her for 18 years, was in 100% compliance with some of the toughest ‘sex offender’ legislation in the country, including GPS monitoring AT THE TIME of her abduction. Every expert on this case has agreed that the over burdened system is THE reason he was able to get away with this. Every recommendation has been that registrants who do not pose an elevated risk, need to be off the registry so they can focus on the dangerous registrants.

California (the state where this occurred) has over 90,000 registered ‘sex offenders’. A recent study showed that 9% (about 8,000) were dangerous. Another approximately 20% were moderately dangerous, but still in treatment, meaning their risk was being lowered. The other 71% had no elevated risk of danger to the public. So nearly 65,000 registrants were being monitored that posed no elevated risk. And if they implement Adam Walsh Act, that number will not only increase dramatically, but most of the non dangerous registrants will be on there for life. That will make the situation exponentially worse in 10 to 15 years.

The true danger of laws like this is that they ‘hide’ the dangerous registrants, allowing them more freedom to commit their vile deeds. Laws like this, meant to protect children, actually over burden the State Patrol to such a degree, that it is easier for predators to ‘hide’ in the system.

MYTH #1: “SEX OFFENDERS WILL ALWAYS KEEP OFFENDING.”
MYTH #2: “TREATMENT DOESN’T MAKE ANY DIFFERENCE.”
MYTH #3: “THE GREATEST THREAT TO OUR CHILDREN COMES FROM STRANGERS.”
MYTH #4: “BANNING SEX OFFENDERS FROM PLACES WHERE CHILDREN CONGREGATE WILL SIGNIFICANTLY PROTECT OUR CHILDREN.”
MYTH #5: “TOUGHER LEGISLATION IS THE ONLY SOLUTION.”
MYTH #6: “THE ONLY WAY TO DEAL WITH THEM IS PUT THEM BEHIND BARS.”
MYTH #7: “MANDATORY MINIMUM SENTENCES ARE EFFECTIVE AND WILL HELP PROTECT SOCIETY.”
MYTH #8: “SEX OFFENDER REGISTRIES ARE NECESSARY TO PROTECT SOCIETY.”
MYTH #9: “TRACKING DEVICES ARE A PRACTICAL AND JUST MEANS FOR KEEPING SEX OFFENDERS UNDER SURVEILLANCE.”
MYTH #10: “THE EXPERTS SAY THAT STRONG, REPRESSIVE MEASURES ARE NECESSARY TO KEEP SEX OFFENDERS FROM RE-OFFENDING.”

Myth – All sex offenders are child molesters and all child molesters are predators.
Myth – Strangers are lurking at school bus stops or around playgrounds looking for children to molest.
Myth – Depraved adults commit all sex crimes.
Myth – Men who molest boys are homosexuals or bisexual.
Myth – Sex offenders have the highest recidivism rate (some quote 95%) and allowing them back into society is a mistake.

]]>constitutionaldefenseRomeo and Juliet Case Destroys a young manhttps://constitutionaldefense.wordpress.com/2009/12/16/romeo-and-juliet-case-destroys-a-young-man/
Wed, 16 Dec 2009 15:37:53 +0000http://constitutionaldefense.org/2009/12/16/romeo-and-juliet-case-destroys-a-young-man/This young man age 16, fell in love with a 14 year old girl. Once he turned 17 (and she 15) he was charged with sexual assault on a minor because her mother thought she was too young for a committed relationship. So he became a ‘dangerous sex offender’, for having consensual sex with his girlfriend 2 years younger than him. He was degraded and humiliated to the point he left school, and is forced to move away from his family. Neighbors see his name on the registry and harass him, and file police complaints against him for simply playing basketball with what few friends he has left.

His life is over, for doing something most of us have done. This shows the true injustice of these laws.

]]>billorightsFamilies Affirming Community Safety (FACTS)https://constitutionaldefense.wordpress.com/2009/12/16/families-affirming-community-safety-facts/
Wed, 16 Dec 2009 15:34:19 +0000http://constitutionaldefense.org/?p=206Families Affirming Community Safety (FACTS) exists to ensure that our communities are safe and that Nebraskans are not lulled into a false sense of security by laws like LB 285. The law is supposed to keep children safe. However, if implemented, LB 285 will allow truly dangerous ‘sex offenders’ like Phillip Garrido (kidnapper of Jaycee Lee Dugard) to “hide in plain sight” on a public web registry that lists all registrants regardless of their level of risk. California has some of the most stringent registry laws in the nation, and all sources agree that Garrido escaped law enforcement attention because the system was distracted and overly burdened by tracking registrants who posed little or no risk.

LB 285 does away with Nebraska’s system of using psychological and law enforcement expertise to assess a registrant’s risk of reoffending. Instead, all registrants — some of whom did not even have victims — will be on the registry, rendering it useless in protecting community safety.

With this website, FACTS intends to share accurate information and alert the public to the dangers posed by LB 285. If the law is implemented, we would not want any Nebraska registrant to inadvertently fail to comply for lack of information. Under LB 285, the proposed conditions are so burdensome for both the registrant and the registrant’s family that compliance is difficult at best, even for those who intend to comply.

The law also could place burdens on employers because it criminalizes commonly used communication means such as text messaging. A professional who is an registrant would be committing a felony simply by receiving a work-related text message, or a text message from his wife asking him to buy a loaf of bread on the way home from work.

By using a misguided “one-size-fits-all” approach and ignoring expert and law enforcement judgment as to the risk posed by a particular registrant, LB 285 represents a clear and present threat to public safety. It also is a threat to the families of thousands of registrants who long ago completed their sentences, succeeded in therapy and have become productive, respected, taxpaying members of our communities.